In fact, the federal government does have such a law. It was passed just two years ago. That law made child rape a capital crime in the military. Apparently, neither the nation’s legislature nor the nation’s chief executive had considered the death penalty to be an inappropriate punishment for child rape. So much for that strong, dispositive “national consensus” found by the majority. But in Kennedy, the prosecution, the defense, the federal Department of Justice—and ultimately, the Court as well—missed that fact. [Linda Greenhouse’s two articles in the Times can be found at: http://www.nytimes.com/2008/07/02/washington/02scotus.html?ex=1215748800&en=f9ad2c4e68f361d7&ei=5070&emc=eta1
and http://www.nytimes.com/2008/07/03/us/03scotus.html?ex=1215748800&en=3df542c2888fe2a4&ei=5070&emc=eta1 .]
Not surprisingly, there are calls to ask the Court to reconsider its decision. The thinking being that, but for this factual mistake, the Court might well have ruled the other way. The 5 – 4 ruling might have been the opposite. Justice Kennedy, the swing vote as well as the majority’s writer, might well have found this added information to be critical.
Well....those who are extremely upset by the majority’s ruling might convince themselves that this is so. They might turn hope into belief that there is a good chance the Court would actually reverse itself. But as one who himself disagrees with the decision in Kennedy, and who himself finds the majority’s opinion woefully unpersuasive (see “Supreme Court: No Death Penalty for Child Rape,” posted
The majority is hardly going to be receptive to a request to admit that its constitutional decision was wrong. Certainly not because of a single factual error. But more than that, any educated reading of the majority’s opinion could hardly deduce that its reason for striking the death penalty for child rape was really because there were only six jurisdictions, as opposed to seven, that had such laws. Or really because there is an actual consensus in the nation against such punishment for that crime. And the fact that such punishment was made available for the highly disciplined life of the armed forces is not exactly the best proof that such punishment is appropriate for civilians. More than that, the existence of such a law for the military can scarcely be translated into a national consensus contrary to that discerned by the majority—again, if “national consensus” really was the basis, or one of the bases, for the Court’s decision.
The truth, as any legal realist would readily understand, is simply that the majority of the justices do not believe that execution is a fitting punishment for child rape. And their reasons are almost certainly varied. It may be that some justices believe the death penalty itself to be barbaric or uncivilized or contrary to deeply held religious or moral beliefs. It may be that some justices simply distrust the criminal justice system to mete out such a punishment fairly; they may, therefore, want to restrict its application as much as possible. It may be that some justices subscribe to a just desert, eye-for-an-eye notion of justice, especially when it comes to taking a life. The possible reasons are many. It is very unlikely that the reasons are the same for all the justices. And those real reasons are not necessarily the ones to be emphasized—if revealed at all—in a legally argued decision.
The very same, of course, is no less true for the justices in dissent.
[That the real bases for judges’ decisions are typically unstated, and often even unconscious, are best discussed in the classic works by two of the finest and most thoughtful judges in American history: Holmes in “The Path of the Law” and Cardozo in “The Nature of the Judicial Process.”]
The point here is simply that the law passed for the military is extremely unlikely to tip the scales of the Court’s 5 – 4 decision the other way.